Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-06
COURT OF APPEALS.

a. Z. Robinson VS.. STATE, from beXar ;
opinion by Hurt, J. This was convic-
ton for robbery in which the appellant
pleaded guilty. The jury returned guilty
of 'theft OF $40, and assessed his pun
1shment at confinement in the peniten-
tiary for thirty years." The foreman
asked the judge to have the verdict put
in proper form, and the district attorney
correc.ed the verdict so as to 'tflnd the
defendant guilty of robbery as
charged in the indictment, etc." APP
pellant objected to the amended verdict.
A new trial was granted, but the
reason. does not appear, and appellant
pleaded former conviction and jeopardy.
The facts do not confer on appellant the
rightto either of said pleas. If there was
no right to amend the verdict Judgment
should have been entered on it unless
illegal, but it was illegal because the
penalty for theft is not over ten years,
even if the court could not amend it, it
could be set aside and vacated. But we
are clearly of the opinion that the verdict
could be amended, and hence the verdict
as amended was legal. The other ques-
tons presented are immaterial, and the
Judgment is affirmed.
z. S. Williams VS.. G. E. Hilburn, from
Lamar; opinion by Hurt, j. APP
peIlee sued appellant in a Justice court
and recovered judgment by default.
Appellant mailed sufficient appeal bond
to the Justice which was taken out of the
office by his son and placed on the docket
within ten days after the judgment. On
December Z, twenty-three days after the
Judgment, the Justice discovered the bond
and approved it as of November q, within
ten days. Upon motion the appeal was
dismissed because not filed in time. This
was error, as was decided by analogy in
Jones VS.. Wells, Wilson, 94-5. The
judgment is reversed and the cause re-
manded.
Western Union Telegraph Company VS..
Cullers & Henry, from Grayson. Opinion
by Hurt, J. Appellees sued appellant for
damages for delay in delivering 8 tele-
gram; appellees wired W. o. Ellis & Co.,
at Houston from Sherman, January "a,
1885, for q specified quantity of sugar,
etc. The message was received in HoUs-
ton the same day and taken to w. o.
Ellis & Co.'S place of business which was
closed and then then taken to the Capitol
hotel where the clerk receipted for 1t,
Ellis being out. The messenger testified
that he had been accustomed to deliver
kilograms at the Hutchins and Capt. oil
hotel according as Ellis had been board
ing at either. On appellants third as
signment of error hinges the most ImpOT-
tant question in the case, viz, "the court
erred in not holding that the delivery of
the telegram was a delivery to Ellis"
This is well taken if there was
any express or implied authority
to deliver messages for Ellis
at the hotel. The uncontradicted testi-
mony of the messenger shows that he had
been accustomed to deliver messages
at the hotel for year, and as Ellis testi-
mony indicates that he was boarding at
Capitol at the time, though temporarily
absent, we consider that there was i'm
piled authority for the telegraph company
to deliver messages at the hotel, and if
this conclusion be incorrect everything
goes to show that appellant exercised the
requisite diligence. The Judgment is re
Versed and the cause remanded.
Barney Nicholas VS.. State, from Free
stone; opinion by White, P. j. This is
an appeal from judgment of conviction
for rape. Omitting formal averments the
Indictment charges that accused did
then and there uniaWfully and felonious-
ly in and upon one Leona Harris, female |
person under the age of ten years, make /
an assault, violently, ETC., and did then |
and there by force and threats against |
her will, ETC., ravish, etc. Under our
statute there are two kinds of rape. First, |
on any female by force and threats, etc.;
second, carnally knowing any female |
person under zen years of age under any
condition.
These are two distinct offenses, and |
the indictment charges both.
The Indictment also alleges the age, |
which is not necessary. Can the two !
classes of offences be Joined in single |
count, in the same indictment? |
The better practice seems to be |
to present them in different courts |
but in this case there was no motion to
quash the indictment for duplicity and |
the verdict cures this defect. The court |
did not err in refusing to charge the jury
that if they found that the proSecutrix |
was over ten years old to find for defend
ant, because the Indictment alleges that
1t was committed by force and threats.
The question is, was the age a material
sverment and required proof? Now, If |
age is a non-essentisl element where
force, threats or fraud and non-consent
are relied on, it would seem that an allie
5dL4On VI age NOulu uOG III duy udQQ6T
be descriptive of the offense thus
charged, and could properly
be treated as surplussge, and if
age is inmsterial where the crime
has been committed by force, etc, GER
tsinly there can be no variance in the
proof where the age has been unnecessa-
rily alleged. We do not, however, be-
iieve the evidence in this case sufficiently
establishes the guilt of appellant.
In the trial the medical expert testified
that the prosecutrix had syphilis and had
had it for three weeks, and doctor testi-
lies that appellant never had it; but, indie
pendent of this negative testimony, the
evidence is insufficient, and the Judgment
Is reversed and the cause remanded.
Z. McGehee vs. State, from Tarrant.
Opinion by White, P. J. This was a con-
Tiction under the law defining an unlaW-
ul assembly for intimidating and pre-
renting one ConIisk, a conductor on the
Pacific Railway, from doing his
iuty.
Article 279, Penal Code, saws an unIaw-